The Problem with Religious Privilege for Prisoners

If we make exemptions for religious belief, we should also do so for conscientious belief.

I’m conflicted about privileging religion in prison, because government should not privilege religion inside or outside of prison. However, I think most prisoners should receive more privileges than they now have, and a substantial number shouldn’t even be incarcerated, yet they sit in prison because of our cruel and ineffective War on Drugs.

The purposes of incarceration should be to protect the community, to act as a deterrent, and to rehabilitate — not for punishment or retribution. More than 60 percent of prison inmates are functionally illiterate, and it’s no secret that people who learn to read are more likely to become productive citizens and less likely to end up in jail.

Similarly, those who learn to read, learn a trade, and learn coping skills while in prison are less likely to return once they are free. Help in finding a job upon release cuts recidivism significantly, and reducing recidivism through rehabilitation is less costly, more humane, and safer for the community.

That said, government should never privilege one religion over another or religion over non-religion, either inside or outside of prison. Unfortunately, Supreme Court Justice Antonin Scalia has asserted that the Constitution permits courts to favor religion over non-religion.

Here are three recent court cases about religious privileging in prison.

1. A Muslim sues to grow a beard in prison.

The U.S. Supreme Court will decide whether Muslim inmate Abdul Maalik Muhammad has the right to grow a half-inch beard in accordance with his religion. Muhammad could legally grow such a beard in 43 states, but not in Arkansas, where he is imprisoned. If such prison beards don’t create a security hazard — and I don’t think there is evidence that they do — why shouldn’t prisoners be allowed to grow them? If beards are hazardous, Muslim prisoners should have no more right to create a hazard than non-Muslim prisoners.

2. A death row inmate sues to have kosher food in prison.

Convicted murderer and rapist Steven Hayes, an Orthodox Jew, is suing the state of Connecticut for violating his religious liberty by not serving him kosher meals in prison. Furthermore, he wants all Jews to have access to kosher meals in prison. But, kosher meals are more expensive, so should taxpayers give this special treatment to Jews? For one thing, it’s not always easy to determine who is a Jew, as I point out here. Rabbinic scholars argue about this, and prison officials shouldn’t have to decide.

When airlines serve meals on planes, they sometimes offer a kosher option. Nobody has to pass a religious test, and I occasionally choose kosher because it seems to be the best meal available. A Florida court decided to treat its prisoners more like airline passengers. It ruled that kosher meals must be offered to any inmate with a “sincerely held” religious belief — regardless of what that belief might be. Immediately after the announcement, 4,417 inmates requested and received kosher meals (four times as expensive).

3. An inmate sues for his religious liberty right to dress like a pirate in prison.

Of the three prisoners I’m writing about, Stephen Cavanaugh is the one whose religious beliefs are closest to mine. He is incarcerated by the state of Nebraska and is a member of the Church of the Flying Spaghetti Monster. Adherents of this group claim that there is no more evidence for intelligent design than for a Flying Spaghetti Monster, so if intelligent design is to be given equal time with evolution in our public schools, the Flying Spaghetti Monster also deserves equal time. I agree. Cavanaugh says that the “religious clothing” he needs to wear in prison is full pirate regalia. A parody, perhaps, but it raises an interesting point.

What is a religion and who decides? Supreme Court Justice Potter Stewart famously said, “Pornography is hard to define, but I know it when I see it.” The same might be said of religion. I’ve heard religion defined as a sincerely held faith-based belief concerning the nature of the universe. But why should our government privilege sincerely held religious beliefs over any sincerely held scientific or philosophical belief?

If the government offers an exemption from a law because of religious belief, then that same exemption should be available for conscientious belief, just as the Supreme Court ruled in favor of a conscientious objector to war.

Many atheists and humanists, myself included, are applauding a recent court decision in the case of American Humanist Association v. United States that allows for the creation of a Humanist study group in prison, just as religious groups are allowed study groups. Atheists and humanists should enjoy the same legal rights as religious people, but this decision is a “mixed blessing” because it referred to secular humanism as a religion for Establishment Clause purposes.

I’m uncomfortable with the prerequisite of a religious designation in order to receive equal rights. I would much rather promote conscience than flying spaghetti monsters.

Image courtesy of Shutterstock.

Herb Silverman
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  • Cisco Lindsey

    If a religious group in prison would help inmates adjust better to life outside of prison, then I am all for it. I suspect their motivation might be to try to get viewed with favor by the parole board. And definitely, Secular Humanists should be afforded the same rights.

  • Ed Buckner

    Not sure what Dr. Silverman has against the Noodly Appendage Deity–but otherwise, he’s exactly right on all points.

  • anamericanundernogods

    This is a slippery slope.
    Who decides what religion or ideology should be allowed?
    How about if a prisoner likes ISIS Study Group?
    How about if a prisoner likes to put up Osama or Ayatollah’s
    pictures up?

  • Amy

    I have mixed feelings on this as well. I definitely don’t think religion should be favored over non-religion, but I’m not sure what the best way to handle sincerely-held religious beliefs is, either. It doesn’t seem quite fair that some people should receive better treatment or an exemption because of some arbitrary religious belief. Like another commenter said, it is a slippery slope.

  • Last Hussar

    In Britain, prisons cater for dietary requirements – Muslims have a Halal option, and there is a vegetarian option (which also counts as Halal). There is a right to attend a religious service. However anyone showing “extremist” views is monitored.

  • Dileep

    They should not get Halal/Kosher food. Giving up meat to get into heaven doesn’t seem so bad.

  • RichardSRussell

    First off, I couldn’t agree more with Herb Silverman about the comprehensive failure and waste of humanity of our nation’s atrocious War on Drug-Using Americans. (Note that this phrase correctly identifies the policy’s real targets — and victims.) But let’s dig a little deeper, shall we? There’s a root cause down there, and not surprisingly it’s the same one the Bible identified: lust for money.

    For those who haven’t been paying attention for the last several decades, our government is up for sale — or, more properly, for rent — to the highest bidders. Those with oodles of cash to spare can get even more by buying off the appropriate government officials to enact public policies that will make them even richer. The beauty is that they don’t even have to give it directly to the elected officials whom they’re bribing, which holds down their overall costs; instead, they give it in the form of contributions to their campaigns.

    So you might be wondering, “Who are these plutocrats with a vested interest in preserving the gawdawful War on Drug-Using Americans?”. Look no further than the competition in the recreational-drug market — purveyors of beer, wine, booze, and tobacco — and the direct beneficiary of the draconian penalties put in place for drug “offenses” (chief victim, if I may abuse the term, being the users themselves), to wit, the prison-industrial complex, with local police forces holding confiscation powers over “drug-related property” (like grandpa’s farm) being prominent in a supporting role.

    So way up the polluted stream from the visible problem is the actual source: big bucks (especially big dark money) in campaign financing, made trebly worse after the Supreme Court’s contra-reality decisions in Citizens United and McCutcheon.

    That rant out of the way, a few random comments directly on the essay itself.

    (1) “Department of Corrections” is a cruelly misleading euphemism for the kind of human warehousing that actually goes on, with little or no effort (to say nothing of money) expended on correcting the behavior that landed its victims in its clutches. A more accurate title would be “Department of Don’t-Give-a-Shit Punitive Dehumanization and School for Crime”.

    (2) You know who spends more of their lives in prisons than the inmates? The guards. It’s a job requiring hardly any skills or education, so it pays for crap, and most screws have to work multiple shifts, holidays, etc. to be able to support their families. (It’s even worse in the for-profit prisons, where management takes its vig right off the top, leaving even less for the poor schmucks — inevitably forbidden from joining unions — at the bottom.) Even if the job didn’t attract closet sadists by its very nature, the constant stress of having your life on the line day in and day out while being forced to mingle with the dregs of society, combined with relentless fatigue, is a recipe for both oppressing them and turning them into potential powder kegs.

    (3) It seems to me that states that require their prisoners to shave are taking an unnecessary chance by giving them access to razor blades. (Not even gonna get into what they do in their women’s prisons.)

    (4) I have a totally sincere, almost religiously intense, belief in the value of my own personal liberty. I hope that’ll cut me some slack when they finally come for me.

  • Lala Doom

    well, i know it isn’t a religion, but i went to jail for 48 whole hours once and pretty much starved to death because i was vegan. i couldn’t eat anything they gave me and what little they did have was pretty much just a can of fruit cocktail. so, i sympathize with the jews. prisons should have a wide variety of food choices available. i’m not talking 5 star restaurant levels, but fresh fruits and vegetables would be a great start. and as for the beard thing, i agree that if there is no chance of his beard being a security risk, then why can’t he keep it? my guess is because of the notion cleanliness is next to godliness and having a beard makes you dirty liberal degenerate. clean up your act in prison and you’ll clean up your act in the real world, and turn you into a nice, right wing conservative republican.

  • supup

    I have a sincerely held belief that it’s unhealthy and morally questionable to eat meat. I think I’ll try to stay out of prison so that I don’t have to eat meat.If we just fed prisoners good, healthy vegan food, I’m pretty sure most “special diets” would be accommodated and we’d save a lot of money!